THE EXPERT WITNESS: Ten steps to prepare for your (or your client's) SOS administrative hearing section substance use evaluation

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By Michael G. Brock

1. Stay sober—The first and most important thing to do is to remain abstinent: you must have at least a year clean time to be eligible to get your license back. Most people who have DUIs are not in control of their drinking, though many think they are.  This is probably due to the fact that they don’t lose control every time they drink.  Perhaps they lose control only a fraction of the time, so they think that they can exercise more will power in the future to eliminate those instances of loss of control.

The reality is that loss of control increases over time, and rarely decreases.  Even if you are the exception that proves the rule, the law still states that you have to be sober a year to get your license back, so why would you ask a hearing officer to break the law?  Even if he were willing to make an exception in your case, why would you expect him to believe that you won’t be a problem on the road when the overwhelming probability is that your will?  You must not drink, or use recreational drugs for at least a year before you will be legally allowed to drive.

2. Control your emotions—It is a difficult process emotionally to review your past mistakes.  Most of the people who come to see us for driver’s license restoration evaluations are living a very different kind of life than they were living when they got their last DUI.  They have moved on, and they wish everyone else would as well.  However, the hearing officers don’t know you and they don’t really have any kind of crystal ball they can look into to tell who is lying and who is telling the truth.  The best they will ever have is a good guess, but they have some other techniques to help them.

They look at indications of acceptance of the problem vs. denial.  If a person can calmly relate what they used to be like, what happened to change them, and what their lives are like now, then they know there a good chance that change is real and permanent.  If they are defensive and argumentative and want to debate the facts that are long since part of the written record, then maybe the person hasn’t really accepted their condition.  If they haven’t accepted their condition, they may not be done drinking or doing drugs.  If they are not done, they shouldn’t be
driving.  Appellants must face the discomfort of reviewing the past.  It is sabotage to be defensive or hostile.

3. Focus on what you can control—the evidence you present.  Clients sometimes ask me about the hearing officers; do I have a good one or a bad one?  What if I don’t go to AA?  Does it count against me that I have a felony DUI?  They worry about elements of the appeal that they have no control over instead of those things within their power to control.  They need to be clear that if they have a lawyer everything goes through the lawyer.

And they need to be sure that they give the same answers all four time they are asked.  They need to know what’s in the eval when they go to the hearing.  They need to get there on time, listen to the questions, answer the question and stop talking.  They need to put their best foot forward and give themselves the best chance to win their appeal.  The best way to waste time and spin your wheels is let your imagination run wild with “what ifs.”  There are really no tricks; the State is clear about what they want—give it to them.

4. Know the facts—Get your driver’s license (DMV) record if possible, or at least know your arrest dates.  It looks bad if clients claim sobriety when they were still drinking.  Know the last dates of use for each substance.  The SOS 257 does not specifically ask for this information, but it is essential information and hearing officers want it.  The burden of proof is on you, the standard of proof is clear and convincing evidence, make the case.  Know what treatment and/or 12 step groups you (or your client) participated in and preferably have documentation.  If the client does not have documentation of AA, he needs to know how the meetings work and be able to say how they are helpful to him.  Support group is helpful, but not essential.

5. The truth will set your free—It is better to make a good case for what you are doing than a bad case for what you are not doing.  If you/your client is genuinely sober/abstinent, you will be able to tell the many ways in which being substance free has given you a better life.  This is true whether you are a member of a support group or not.  If you are telling the truth you will not have difficulty remembering what your story is supposed to be.  The exception to this rule are arrest and sobriety dates, which most people won’t remember unless they  are in AA, and then they will only  remember the last date they got high or drank.  You need to read over the eval and be sure of your guesses in this case.

6. All your evidence must line up—I prefer that clients don’t get support letters or fill out the request for hearing form prior to seeing me.  Often times they are not done right and don’t line up with the information on the evaluation.  Best that we complete the evaluation and have it in front of you when you are filling out the request for hearing form.  Then you can also give you letter-writers reasonably accurate information about when you took your last drink or drug.  We need to go over all of this at the evaluation.

7. Get good letters—When you get them, your letters must be signed dated and notarized, and include contact information for the letter writer, and your last dates of substance use, whether or not they knew you then.  If your people writing support letters didn’t know you then, you have to tell them when you quit drinking and/or drugging.  They are testifying that as far as they know, you have been sober as long as you say you have.  This is essential; if you send in letters without the necessary information, you are doing less than the minimum.  Why would you want to do that?  Can less than the minimum be clear and convincing evidence?  It’s a good rule of thumb in life to do more than you think the situation requires, not less.

8. Your testimony must support your written evidence—At the hearing; let the hearing officer or your attorney lead.  If you try to lead you are wasting time and giving the hearing officer the message that you don’t care what he thinks is important, you want to tell him what you think is important.  What you think is important is not important; the only thing that matters is what the hearing officer thinks is important,  because he or she alone will make the decision about whether you will get a license.  “I’ve waited long enough, give me my license back now,” is not a winning strategy.  We have seen what could have been good cases go out the window because of clients expressing this attitude.

9. Be brief—Make sure you listen to the question, answer the question, and stop talking.  Keep your answers short and to the point.  The more you ramble on the more time you are wasting and the hearing officer is on a schedule.  Moreover, the more you say the greater the chance that you will say something self-defeating.

10. Be humble—there may be a time in life to impress people with how wonderful you are and how much you know, but this is not it.  You messed up, endangered your own life and the lives of other drivers.  You are asking the state’s representative for another chance to prove that you can be trusted with a driver’s license.  He or she is under no obligation to give you that chance, but they will if they think you will stay sober and obey the law.  That is what you must convince them of—that you will stay sober and follow the law.  This is how to do it.
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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.

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